How Rape Laws Remove the Presumption of Innocence

Over the last 40 years, rape laws have undergone a fundamental transformation. In some ways, these changes have removed barriers to rape victims receiving a fair trial and have helped bring many rapists to justice. But in other ways the reforms have gone too far, upending traditional tenets of criminal procedure and removing due process protections for the accused.

The overall effect has been to shift the burden of proof to the defendant, likely resulting in more wrongful convictions. In Washington state, for example, juries receive the following instruction: “The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual.”

As a result, false allegations have increased, thus diluting the availability of services and protections for victims, and eventually diminishing the credibility of victims’ claims.

These are the ways that due process protections and related practices have been weakened or removed:*

1. Definition of Rape. In the past, the definition of rape included the forcible genital penetration of a person without her (or his) consent. Now, some groups define rape in terms of genital penetration in which either person has consumed any alcohol or drugs, thus rendering the person unable to give consent.”

2. Statute of Limitations: For most felonies such as rape, the statute of limitations is five years. But as of 2004, only three states required prompt reporting of the allegation, and several states have abolished the statute of limitations for rape cases altogether.

3. Adjudicating Rape Allegations under Civil Law. In the past, allegations of rape were adjudicated under criminal law. Now the Department of Education mandates that sexual assault allegations against university students be processed by college disciplinary committees.

4. Courtroom Terminology: During courtroom trials, it is not uncommon for the complainant to be referred to as the “victim,” even though that fact has not been established.

5. Shielding the Identify of the Accuser: Our system of justice requires that the court process be open to the public, and the First Amendment allows the press to report the names of parties to a case. But many states now have statutes that specifically prohibit the identification of a woman alleging rape.

6. Right to Confront One’s Accuser: In the past, defense attorneys were allowed to ask detailed, often intrusive questions about the accuser’s prior sexual history. Now under Federal Rules of Evidence 412, such questions generally may not be posed.
7. Guilty Mind (“mens rea”): Criminal law has long held that if a man believed in good faith that the woman was consenting to intercourse, then he could not be found to have committed rape. Now, that requirement has been largely removed.

8. Affirmative Consent: In the past, a man could reasonably infer that a woman was consenting to intercourse based on her behavior. Now, the woman must give affirmative permission through “words or overt actions” – although there is a lack of consensus regarding which specific overt actions constitute consent.

9. Corroborating Evidence: The 1962 Model Penal Code stated there should be no conviction for sexual offenses “upon the uncorroborated testimony of the alleged victim.” Now the situation has been completely reversed, and not a single state generally requires an alleged victim of rape to provide corroborating evidence.

10. Reasonable Resistance: In 1951 the Oregon Supreme Court ruled, “The woman must resist by more than mere words. Her resistance must be reasonable proportionate to her strength and her opportunities.” Now, only half of all states require there to have been physical resistance.

11. Admission of Evidence of Prior Sexual Assaults: A basic tenet of our criminal justice system is that jurors generally are not informed of any prior criminal record of the defendant in order to preclude bias. But under Federal Rule of Evidence 413, in a “criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible.” Note that the rule allows admission not only of prior convictions, but of any evidence including arrests or mere allegations. Evidence of the complainant’s prior false allegations may not be introduced as evidence, however.

12. Rape Trauma Syndrome: In some states, the prosecutor may have an expert witness testify that the alleged victim is suffering from “rape trauma syndrome” — even though the validity of the syndrome has been questioned and the expert witness may have never spoken with the alleged victim to evaluate her mental state.

13. Civil Commitment of Offender After Penal Release: In the past, society believed that once a man served his sentence and paid his debt to society, he should be allowed to re-integrate into the community and pursue a reasonably normal existence. But as of 2007, 19 states passed civil detention statutes for sexual offenders that may have the effect of keeping a man in prison-like conditions for the rest of his life.

* Unless otherwise noted, the source of this information is a law review by Richard Klein: An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search for Fairness. 41 Akron Law Review 981 (2008).